Sanju Panda, JThis writ petition has been filed by the petitioner challenging the order dated 18.05.2013 passed by the learned Civil Judge (Senior Division), Puri in C.S. No. 237 of 2013 allowing an application filed under Order 7, Rule 11 of C.P.C. to reject the plaint.

2. The brief facts of the case are that the petitioner as plaintiff filed C.S. No. 237 of 2013 before the learned Civil Judge (Senior Division), Puri for permanent injunction. Along with the plaint the plaintiff also filed an application under Order 39, Rules 1 and 2 of C.P.C. for temporary injunction, which was registered as I.A. No. 113 of 2013.

3. The opposite parties-defendants appeared in the suit through caveat and filed an application under Order 7, Rule 11 of C.P.C. to reject the plaint inter alia taking a stand that the suit is barred by law under the provisions of Benami Transactions (Prohibition) Act, 1988 in view of the plea of Benami Transaction taken by the plaintiff between one Jayakrushna and defendant No. 2. The pleading disclose no cause of action against the defendants, hence the plaint is liable to be rejected. The plaintiff filed her objection to the said application contending that the suit is not barred under the provisions of Benami Transactions (Prohibition) Act, 1988 as the said Act has got prospective effect and in this case the Sale Deed challenged by the plaintiff were of the year 1972 and 1974. The title of the property is sub judice between the parties before the Commissioner, Consolidation therefore the present suit for permanent injunctions is maintainable.

4. The court below after hearing the parties by the impugned order allowed the application with a finding that the present suit for permanent injunction filed by the plaintiff is not at all maintainable more particularly when the right, title, interest of the parties is in dispute before the Consolidation, Commissioner. The claim of the plaintiff is not only barred under Section 51 of O.C.H. & P.F.L. Act, 1972 but also the same is barred under Section 67 of the O.L.R. Act.

5. Learned counsel appearing for the petitioner submitted that the court below has failed to appreciate that neither Section 51 of O.C.H & P.F.L. Act nor Section 67 of O.L.R. Act bars the jurisdiction of the Civil Court to entertain a suit for permanent injunction. He further submitted that if the matter is pending before the Consolidation authorities, the Civil Court can grant relief of permanent injunction. He also submitted that the cause of action for filing of the suit arose after final publication of the Consolidation R.O.R. and closure of Consolidation Operation in the Mouza. In support of his contention he has relied on the decisions reported in.

6. Learned counsel appearing for opposite parties however supported the impugned order and submitted that the plaintiff has no cause of action to file the suit against the defendants. He further submitted that against the impugned order is appealable therefore the Writ Petition is not maintainable. In support of Arun Kumar Vs. N. Nirmala Devi and Others, (2014) 117 CLT 107 and Akshaya Kumar Samal and two Others Vs. Gitipuspa Samal and four Others, (2014) 117 CLT 1052 : (2014) 1 OLR 763 . [LQ/OriHC/2014/89]

7. This Court in the case of Arun Kumar Vs. N. Nirmala Devi and Others, (2014) 117 CLT 107 held that an order rejecting a plaint on whatever ground, is a decree, as defined under Section 2(2) of the C.P.C. and is appealable.

7.1 In the case of Bijan Kishore Mohanty Vs. Smt. Kanakalata Das @ Mohanty and two others reported in 2012 (1) OLR 569 this Court held that for rejecting a plaint only the averments of the plaint are to be gone into and the Court has to ensure that meaningless litigations, which are otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the Court. If from perusal of the plaint itself it is seen that the plaintiff has absolutely no interest over the suit properties, even if, the plaintiff has alleged some facts to be existing, which are required to be provided during the trial of the suit, the plaint can be rejected for want of cause of action.

7.2 This Court in the case of Akshaya Kumar Samal and two Others Vs. Gitipuspa Samal and four Others, (2014) 117 CLT 1052 : (2014) 1 OLR 763 [LQ/OriHC/2014/89] held that if a plaint does not disclose any cause of action, the court can reject the plaint at any stage of the suit, as the provisions of Order 7, Rule 11 of C.P.C. are imperative, and can operate at any stage of the suit.

8. The Apex Court in the case of Salem Advocate Bar Association Vs. Union of India (UOI), AIR 2003 SC 189 [LQ/SC/2002/1104] : (2003) 1 DMC 73 : (2002) 9 JT 175 : (2004) 8 SCALE 115 : (2003) 1 SCC 49 [LQ/SC/2002/1104] : (2003) 1 UJ 1 [LQ/SC/2002/1104] held that Order 7, Rule 11 of C.P.C. being procedural would not require the automatic rejection of the plaint at the first instance. If there is any defect as contemplated by Rule 11(e) or non compliance as referred to in Rule 11(f), the court should ordinarily give an opportunity for rectifying the defects and in the event of the same not being done, the court will have the liberty or the right to reject the plaint. It does not either expressly or by necessary implication provide that power under Order 7, Rule 11 of C.P.C. could be exercised at a particular stage only. In the absence of any restriction placed by the statutory provision, it is open to the Court exercise that power at any stage. ( Samar Singh Vs. Kedar Nath alias K.N. Singh and Others, AIR 1987 SC 1926 [LQ/SC/1987/524] : (1987) 3 JT 165 : (1987) 2 SCALE 135 [LQ/SC/1987/524] : (1987) 1 SCC 663 Supp : (1987) SCC 663 Supp

8.1 This Court in the case of Orissa Mining Corporation Limited Vs. Klockner and Company and Others, AIR 1996 Ori 16 [LQ/OriHC/1995/7] : (1995) 2 OLR 16 [LQ/OriHC/1995/193] held that rejection of plaint in four classes of cases mentioned in Clauses (a) to (d) are not the instances given in which a court can reject a plaint or as limiting the inherent powers of the Court in respect thereof. In disposing of a suit under this Rule the Court ought not to dismiss the suit but should reject the plaint.

9. In view of the aforesaid settled position of law and on a plain reading of the plaint, it appears that the plaintiff has made out a case to be tried subject to the evidence adducted by the parties. The court below has not gone into the merits of the case, therefore, the impugned order is not coming under the definition of a decree as defined in the Code of Civil Procedure and as such appeal is not the alternative remedy. Since the Court below without following the aforesaid settled position of law rejected the plaint by the impugned order, the same is an error apparent on the face of the record. Accordingly, this Court in exercise of the jurisdiction under Article 227 of the Constitution of India while setting aside the impugned order directs the learned Civil Judge (Senior Division), Puri to proceed with C.S. No. 237 of 2013 in accordance with law.

The writ petition along with Misc. Case is accordingly disposed of.